Carillion Construction Ltd v Devenport Royal Dockyard Ltd (Part II)

Observations concerning how an adjudicator should deal with evidence and any provisional conclusions he might reach before finalising his decision and with giving reasons for the decision

26 April, 2005

CARILLION CONSTRUCTION LTD v DEVONPORT ROYAL DOCKYARD LTD

Technology and Construction Court
Jackson J
26 April 2005

Jackson J in this case set out the following observations concerning how an adjudicator should deal with evidence and any provisional conclusions he might reach before finalising his decision: (1) If an adjudicator declined to consider evidence which, on his analysis of the facts or the law, was irrelevant, that was neither a breach of the rules of natural justice nor a breach of paragraph 17 of the Scheme for Construction Contracts, which provided that the adjudicator was to consider any relevant information submitted to him by a party (2) If the adjudicator's analysis of the facts or the law was erroneous, it might follow that he ought to have considered the evidence in question but the possibility of such an error was inherent in the adjudication system and was not a ground for refusing to enforce the decision (3) It was often not practicable for the adjudicator to put to the parties his provisional conclusions for comment, insofar as very often they only represented some intermediate position for which neither party was contending and it would only be in an exceptional case that an adjudicator's failure to put them to the parties would constitute such a serious breach of the rules of natural justice that the court would decline to enforce his decision.

Jackson J went on to discuss the position if an adjudicator was requested to give reasons pursuant to paragraph 22 of the Scheme for Construction Contracts. He stated that a brief statement of those reasons sufficed on the basis that: (1) The reasons should be sufficient to show that the adjudicator had dealt with the issues remitted to him and what his conclusions were on those issues and (2) It would only be in extreme circumstances that the court would decline to enforce an otherwise valid adjudicator's decision on the ground of the inadequacy of the reasons given and the complainant would need to show that the reasons were absent or unintelligible and that, as a result, he had suffered substantial prejudice. The justification for these observations was that: (1) Adjudicators' decisions did not finally determine the rights of the parties (unless all parties so wished) and (2) If reasons were given and proved to be erroneous, that did not generally enable the adjudicator's decision to be challenged and (3) Adjudicators were often not required to give reasons at all.